DIGNITY DENIED: Somali Refugees Expelled from Kenya in 2014 DIGNITY DENIED: SOMALI REFUGEES EXPELLED FROM KENYA IN 2014 SHADOW REPORT ON VIOLATIONS UNDER THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS AGAINST SOMALI REFUGEES AND ASYLUM SEEKERS IN THE REPUBLIC OF KENYA DURING “OPERATION USALAMA WATCH” Submitted in response to The Combined 8th Periodic Report (2008-2014) of the Government of Kenya presented at The 57th Ordinary Session of the Commission (4-18 November 2015) 4 September 2015 prepared by International Commission of Jurists, Kenya Chapter (ICJ-Kenya) and Justice Forum 2 DIGNITY DENIED: SOMALI REFUGEES EXPELLED FROM KENYA IN 2014 Contents Reporting Organisations ........................................................................ 4 Introduction ............................................................................................. 5 SuGGested Questions For Kenya ........................................................... 6 Executive Summary ............................................................................... 8 Research Methods ................................................................................... 11 Kenya’s Failure To Uphold Its Human RiGhts ObliGations ....................... 12 Thematic Violations ................................................................................ 13 Case Studies ............................................................................................ 20 SuGGested Recommendations ............................................................... 45 Appendix 1: ChronoloGy Of Key Events And Procedural History ............. 46 Appendix 2 - Legislation and Case law ................................................. 56 Appendix 3 - Literature .............................................................................. 60 3 DIGNITY DENIED: SOMALI REFUGEES EXPELLED FROM KENYA IN 2014 Reporting Organisations Justice Forum is a UK based The Kenyan Section of not-for-proft with a focus on the International Com- investiGatinG human riGhts mission of Jurists violations committed by (ICJ Kenya) is a nonGovern- powerful governments and mental, nonpartisan, not corporations around the for proft making, member- world. ship organisation registered in Kenya. Its mission is to protect human riGhts, and promote the rule of law and democracy in Kenya and across Africa throuGh the application of legal exper- tise and international best practices. 4 DIGNITY DENIED: SOMALI REFUGEES EXPELLED FROM KENYA IN 2014 Introduction This report has been prepared for the African Commission (“the Commission”) in its Universal Periodic Review of the Republic of Kenya (“Kenya”). We present new research alonGside a summary of credible, publicly available evidence, demonstratinG systemic violations by Kenya of its obliGations under the African Charter on Human and Peoples’ RiGhts (“the Charter”). These violations have been carried out in the context of unlawful internal security operations targeting Somali refugees and asylum seekers, involving the refoulement of Somali refugees and asylum seekers from Kenya to the Republic of Somalia (“Somalia”). In particular we focus on refoulements occurrinG between March and May 2014 in the context of an internal security operation called “Operation Usalama Watch.” 1 1 Article 62 of the African Charter on Human and Peoples’ Rights (‘African Charter”) requires Member States to submit, every two years, a report to the African Commission on Human and Peoples’ Rights (“Commission”) on the legislative or other measures taken to give effect to the rights and freedoms recognised and guaranteed by the Charter. Djibouti’s recently submitted Combined Initial and Periodic Report details its stated commitment to uphold various rights guaranteed by the African Charter, including, among others: the right to non- discrimination and equality before the law (Article 2), the right to be equal before the law and to enjoy equal protection of the law (Article 3), the right to life and to physical and moral integrity (Article 4), the prohibition of torture and other cruel, inhuman or degrading treatment (Article 5), the right to security of the person and freedom from arbitrary arrest or detention (Article 6), and the right to a fair trial (Article 7). See Republic of Djibouti, Combined Initial and Periodic Report under the African Charter on Human and Peoples’ Rights, Paragraphs 58-112, available at http:// www.achpr.org/fles/sessions/15th-eo/state-reports/1-1993-2013/ periodic_report_1993_2013_eng.pdf 5 DIGNITY DENIED: SOMALI REFUGEES EXPELLED FROM KENYA IN 2014 Suggested Questions For Kenya In light of the submissions in this report, the Government of Kenya must urgently clarify: 1. Who has been transferred from Kenya to Somalia under the Tripartite Agreement, in the context of counterterrorism/internal security operations since 2012? 2. Who has been transferred, deported, expelled or encouraged to return from Kenya to Somalia by Kenyan police or other agents of the Kenyan state, outside of the arrangements provided for by the Tripartite Agreement, in the context of counterterrorism/internal security operations since 2012? 3. What steps have been taken to ensure that returnees purportedly giving consent to a transfer of themselves and/or family members are in fact making informed decisions free from coercion? What system is in place and what records are kept in relation to individual returns and the consent process? 4. How does the government of Kenya justify its policies of returns of Somali refugees and asylum seekers under domestic, regional and international law? 5. What steps has the Government of Kenya taken to monitor the plight of Somali returnees post-return? What system is in place, and what records are kept in this respect? Are monitoring efforts on-going? 6. What procedures, policies and practical steps has the government of Kenya developed and implemented to ensure that Somali refugees are not unlawfully separated from their family members during security operations? 7. What procedures, policies and practical steps has the government of Kenya developed and implemented to ensure that Somali refugees are not unlawfully deprived of their property, business and livelihood during security operations? 8. What procedures, policies and practical steps has the government of Kenya developed and implemented to ensure that Somali refugees are not unlawfully deprived of urgent access to medical care during security operations? 9. What procedures, policies and practical steps has the government of Kenya developed and implemented to ensure that women and child refugees are afforded special protection in line with their increased vulnerability as recognised under international and regional human rights treaties? 6 DIGNITY DENIED: SOMALI REFUGEES EXPELLED FROM KENYA IN 2014 10. How does the Government of Kenya continue to justify carrying out national security operations targeting large numbers of Somali refugees, given the fact that despite operations of such nature having been carried out for almost three years, the security situation in Kenya continues to deteriorate (and no domestic terrorist attacks are yet understood to be credibly attributable to Somali refugees)? 11. What steps has the government of Kenya taken to investigate claims of ill-treatment of Somali refugees during arrest, detention and transfer operations? 12. What steps has the government of Kenya taken to assess and provide reparations to Somali refugees unlawfully mistreated during security operations? 7 DIGNITY DENIED: SOMALI REFUGEES EXPELLED FROM KENYA IN 2014 Executive Summary This shadow report documents violations occurring during the refoulement of Somali refugees and asylum seekers from Kenya to Somalia, occurrinG between March and May 2014 in the context of an internal security operation called “Operation Usalama Watch.” The Operation was carried out around EastleiGh Estate and other predominantly Somali areas of Nairobi. DurinG this operation, thousands of Somali refugees and asylum seekers were apprehended and detained in the Kasarani Sports Stadium Complex in Nairobi. Detainees were subsequently either released without charge, charged with unlawful presence, made to relocate to refugee camps, deported, or released after payment and on the condition that they would return to Somalia as soon as possible. Over fve thousand such individuals were subsequently forcibly relocated to refugee camps in northern Kenya and at least 359 others were formally expelled back to Somalia, with an unknown number of individuals informally expelled. 2 Conditions of confnement and ill-treatment experienced by the Somali refuGees whilst still in Kenya has been well documented by international human rights organisations and other bodies including the Independent Police OversiGht Authority (IPOA), who sent a team of monitors and investigators to various police stations including the Kasarani Sport Complex and Jomo Kenyatta International Airport detention centers. The IPOA indicated that the police operations may “engender a feeling of ethnic profling,” 3 and reported violations of human riGhts including: discriminatory policing practices with Somali refugees being overrepresented amonGst those who were detained and expelled durinG the operation; unconstitutional detention conditions with detainees beinG placed in overcrowded, unsanitary conditions and beinG denied basic riGhts; and that children were routinely beinG held with adults. 4 Building on research already conducted relating to events in Kenya during